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Judge allows Santa Fe ranked-choice voting case to proceed

SANTA FE – A Santa Fe judge has denied city government’s motion to dismiss a court petition demanding implementation of ranked choice voting for next year’s municipal election.

District Judge David Thomson also ordered another hearing on whether the appropriate software is actually “available” and on a new argument made by the city lawyers – whether ranked choice voting is in fact constitutional, despite the fact it was the City Council itself that put a ranked-choice plan before Santa Fe voters almost a decade ago.

Judge David Thomson

In 2008, voters overwhelmingly approved a city charter amendment to switch to ranked-choice when the appropriate vote-counting software was available at a reasonable price.

Thomson heard arguments Thursday morning from lawyers for both the city and the group of petitioners, including Maria Perez of FairVote New Mexico, on whether Santa Fe is legally obligated to use a ranked choice voting system for the March election, when the mayor’s position and four council seats will be on the ballot.

The state Supreme Court denied a similar petition in September. But a new one was filed in state District Court after the Secretary of State’s office certified voting software capable of handling ranked choice voting, or RCV. Its previous lack of certification was one reason that in July, the City Council postponed implementing RCV until the 2020 elections.

Assistant City Attorney Zach Shandler argued that the petitioners could not take their case to District Court after the Supreme Court’s denial. But Thomson said he could hear the petition because there has been no clear “adjudication” of the facts of the case.

For next Tuesday’s hearing, Thomson asked for witnesses from the Secretary of State’s office, which certifies voting software, and Dominion Voting, the company that created the RCV piece of the state’s voting-counting software.

Dominion’s technology would now cost the city only about $40,000, city officials have said. But in July, a City Council majority chose to delay ranked-choice over concerns that included needing more time to educate voters on a new voting system, as well as whether Dominion missed deadlines for having its software ready to go. “That’s rushing and that’s when mistakes are made in elections,” Shandler said of changing the system now.

Teresa Leger, attorney for the petitioners, said Dominion’s now-certified RCV technology is an update to New Mexico’s statewide voting software. That means Santa Fe will be using software in 2018 that has the RCV addition, but without taking advantage of it. “All they’ve done is come up with reasons for why they can’t do it,” said Leger.

Leger said there’s still time to make a change. She said city candidates have until mid-December to drop out of the race if they choose and that a decision on RCV needs to be made by Jan. 12, when the city has to start ordering ballots.

Shandler briefly raised the question of the constitutionality of ranked choice voting. But Thomson told Shandler, “That ship has sailed,” referencing that RCV has been long approved. Still, the judge said later that he wanted both sides to address the constitutionality issue at a hearing on Nov. 28.

RCV, also known as “instant runoff,” would be used in elections with more than two candidates. Voters would rank candidates in order of preference. If no candidate is the first choice of more than 50 percent of the voters, the candidate with the fewest votes is eliminated and the second choices of those who voted for the last-place candidate are counted as votes for the remaining candidates. If the top vote-getter still doesn’t have a majority, the process is repeated until someone gets enough votes to win.

The system is used in several jurisdictions around the country, including Minneapolis and San Francisco. Some jurisdictions have tried RCV and then returned to traditional voting systems.

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